United States District Court, S.D. New York
SHIQIU CHEN and CHANGREN ZOU, on behalf of themselves and others similarly situated, Plaintiffs,
H.B. RESTAURANT GROUP, INC. d/b/a Hunan Balcony, SG 98 RESTAURANT GROUP, INC. d/b/a A New Saigon, J & K RESTAURANT GROUP, INC. d/b/a Szechuan Gourmet d/b/a Szechuan Garden, JOHN DOE CORPORATION, INC. d/b/a Szechuan Garden, JENNY SHUCHEN WU, and ZUN BI CHEN, Defendants.
DECISION AND ORDER
W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Shiqiu Chen and Changren Zou, on behalf of themselves and
similarly situated individuals, brought this action to
recover unpaid wages, overtime wages, and other damages under
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(the "FLSA"), and the New York Labor Law, N.Y.
Labor Law § 650 et seq. (the "NYLL").
Defendants H.B. Restaurant Group, Inc. d/b/a Hunan Balcony,
SG 98 Restaurant Group, Inc. d/b/a A New Saigon, J&K
Restaurant Group, Inc. d/b/a Szechuan Gourmet d/b/a Szechuan
Garden, John Doe Corporation, Inc. d/b/a Szechuan Garden
(collectively, the "Corporate Defendants") are
restaurants doing business at various periods in Manhattan.
Plaintiffs allege that Jenny Shuchen Wu ("Defendant
Wu") and Zun Bi Chen ("Defendant Chen")
(collectively, the "Individual Defendants") are the
owners and operators of the Corporate Defendants.
three-day bench trial was held on May 15, 16, and 29, 2019.
Thereafter, the parties each submitted proposed findings of
fact and conclusions of law. (Dkt. 129, 133.) The Court
observed the demeanor and testimony of the witnesses during
trial and has carefully considered the parties'
submissions and arguments.
accordance with Federal Rule of Civil Procedure 52(a), this
Decision and Order constitutes the Court's findings of
fact and conclusions of law. For the following reasons, the
Court finds that Plaintiffs have not met their burden of
proof to establish any basis for liability against
Defendants. Accordingly, the Clerk of the Court is
respectfully directed to enter judgment in favor of
Defendants and close the case.
Court will briefly recount the relevant procedural history.
The Complaint was filed on March 17, 2016 (Dkt. 1) and the
First Amended Complaint ("Complaint"), now the
operative pleading, was filed on December 29, 2016. (Dkt.
68.) The matter was initially assigned to the Honorable Lorna
G. Schofield, U.S.D.J., and the Honorable James C. Francis
IV, U.S.M.J. (Dkt. 1.) The Court granted several extensions
of time, resulting from the substitution of Defendants'
counsel and delays by Plaintiffs in complying with discovery
deadlines. (Dkt. 36-37.) On September 20, 2016, the parties
consented to the jurisdiction of Judge Francis for all
purposes pursuant to 28 U.S.C. § 636(c). (Dkt. 41.) The
case was reassigned to the undersigned on November 1, 2017
upon Judge Francis' retirement.
filed their Answer on September 21, 2016. (Dkt. 43.) The
Court entered a Civil Case Management Plan and Scheduling
Order on November 9, 2016. (Dkt. 62.) Defendants filed a
motion for partial summary judgment but withdrew the motion
about two months later. (Dkt. 80.) Discovery closed on
November 10, 2017, and the parties submitted a Joint Final
Trial Report on December 18, 2017. (Dkt. 95.) Following
several adjournments, a pretrial conference was held on
September 18, 2018. (Dkt. 101.) Trial dates were selected for
March 2018, but then adjourned to May 15 and 16, 2018. (Dkt.
118.) An additional day of trial was added for May 29, 2019.
trial, Plaintiffs submitted Proposed Findings of Fact and
Conclusions of Law on September 2, 2019 ("Pl.
Br."). (Dkt. 129.) Defendants submitted their Proposed
Findings of Fact and Conclusions of Law on October 14, 2019
after receiving two extensions to do so ("Del
Br."). (Dkt. 133.)
three days of trial, Plaintiffs called two witnesses:
Changren Zou (T. 6-114) and Shiqiu Chen. (See T. 114-208.)
Defendants called one witness: Jenny Shuchen
(See T. 217-290; T2. 3-36.) All witnesses testified
through a Chinese-language interpreter.
FLSA and NYLL trials often focus on factual disputes
regarding employees' hours, the nature of the work
performed, or employers' qualifications for coverage
under the relevant statutes, the instant trial instead
focused on whether Plaintiffs actually worked for Defendants
at all. The primary factual issue before the Court, as shown
below, was whether and when Plaintiffs worked for a
restaurant owned by Defendant Wu - the predicate to finding
liability under the FLSA or NYLL. The Court will begin with a
summary of Plaintiffs' testimony, followed by Defendant
Zou worked for two restaurants called Hunan Balcony and A New
Saigon, both located at 2596 Broadway, New York, NY 10025
("2596 Broadway") at different time periods. He
also worked for Szechuan Garden, located at 239 West
105th Street, New York, NY 10025 ("239 West
105th Street"). (T. 6-7.)
work began at Hunan Balcony. From July 1, 2012 to December
31, 2012, he largely delivered food orders and performed
other ministerial labor (e.g., cutting cardboard, cleaning
the sidewalk and wiping windows). (T. 8, 10, 12.) He first
learned about the job opening from a friend, and then spoke
with the manager there named "Ah Pao," who told Zou
he could begin working. (Id.)
testified that he worked at Hunan Balcony for six days per
week from 11 a.m. - 11 p.m. (Id.) His rate of pay
was $50 per day; he was informed of this rate orally and told
that he could receive tips from customers. (T. 9.) He
testified that there was no "time recording system"
to track his hours. (T. 15.) Instead, to collect his
bimonthly salary, Zou would sign "a piece of paper"
that the manager would retain, and then he would receive his
salary. (Id.) He would keep any cash tips, and then
the "front desk girl" would calculate any tips
received through online platforms or credit cards and pay him
at the end of each day. (T. 16.)
identified Defendant Wu as the "general manager"
who was "in charge of everything" including his
salary and assignment of work. (T. 11.) Defendant Zun Bi Chen
was also a "boss," who was often at the front desk
managing the restaurant. (T. 11-12.) During his time at Hunan
Balcony, Zou testified that Wu would sometimes send him to
Szechuan Garden at 239 West 105th Street "to
go there and help out with deliveries" when that
restaurant was busy, which was typically three or four times
per week. (T. 11, 19.) He further testified that during his
time working between both restaurant locations, his base
salary was the same and always paid through Hunan Balcony.
Zou stopped working for Hunan Balcony by December 31, 2012.
Then, sometime in April 2013, he received a phone call from
Ah Pao who asked him to come work part-time at Szechuan
Garden on 239 West 105th Street. (T. 21-22.) Zou
worked there only one or two days per week, and performed
only food deliveries. (Id.) His hours on those days
were typically 12 p.m. - 10 p.m. with a one-hour lunch break
and short break for dinner, which he believes he recorded
through a mechanical time-punching machine. (T. 21-22, 26,
testified that Wu was a "manager" at Szechuan
Garden and had responsibilities for payment and organization.
He testified that he believed that Defendant Chen was also a
manager at Szechuan Garden, though he did not give Zou
instructions directly. (Id.) As at Hunan Balcony,
Zou received bimonthly installment payments and signed a
piece of paper in order to receive his payment, typically
from Wu. (T. 27.) Zou testified that he did not execute an
employment agreement at the start of the relationship.
(Id.) Unlike Hunan Balcony, however, he was unsure
of his rate of pay: "I think they pay me by the hour. I
don't really know." (T. 28.)
Zou's testimony is unclear regarding exactly when he
stopped working for one or two days per week at Szechuan
Garden. He was never asked the question directly, but instead
mentioned that "something happened to one of my
[children] so I didn't work and I went home and I took
care of my child." (T. 29.)
November 20, 2014 through April 30, 2016, Plaintiff Zou
worked for A New Saigon, located at 2596 Broadway - a
different restaurant at the same address that Hunan Balcony
previously occupied. (T. 30, 35.) He began there the same day
that the restaurant opened. (Id.) According to Zou,
Defendant Wu, Defendant Chen and Ah Pao were all present at A
New Saigon during his employment there. (T. 31.) Wu was
"managing" and responsible for "giving out
pay" though she was apparently not there every single
day. (T. 32.)
Zou's work at A New Saigon involved delivering food,
although he also performed other tasks, such as cleaning. (T.
31 His daily work assignments were generally given by Ah Pao.
(Id.) Zou testified that he was paid $50 per day and
worked approximately six days per week from 11 a.m. to 11
p.m. with short breaks for lunch and dinner. (T. 34, 36-37.)
Once again, he did not sign any agreement at the start of his
work but was verbally notified of the rates and hours.
(T.33-34) The restaurant had no punch-clock for tracking his
time. (T. 37.) And again, as with Hunan Balcony and Szechuan
Garden, Zou was asked to sign a piece of paper that he did
not read, and that the restaurant would keep, before
receiving his bimonthly pay. (T. 38, 44.) Tips were handled
in the same manner as well; Zou would retain any cash tips
without reporting them, and then would meet with the person
at the front desk at the end of each night to collect any
tips paid by credit card or online provider. (T. 39-40.)
the same period that Zou worked at A New Saigon (November 20,
2014 through April 30, 2016), Wu or Ah Pao would occasionally
send him to handle deliveries for Szechuan Garden at 239 West
105th Street when that location was "too
busy." (T. 42.) The trial testimony on this arrangement
was inconsistent and far from clear; at one point, Zou
indicated that he stopped working at Szechuan Garden at the
end of 2013, but at other points, he indicated that between
2014 and 2016, he worked for both locations "seven days
a week." (T. 47.) He stated that he did not receive a
separate paycheck from Szechuan Garden from the days when he
worked there other than the monies he received from A New
Saigon, which he claimed encompassed his work for Szechuan
Garden. (T. 104-105.) Zou stopped working at A New Saigon
when the restaurant closed. (T. 50.)
admitted that he was unaware of the formal corporate entities
or ownership interests in the restaurants. (T. 84-85.)
Rather, he only recognized the names of the restaurants in
Chinese and recognized the individuals who appeared to be
managers, though he did not know with certainty who owned the
cross-examination, defense counsel elicited testimony from
Zou's deposition that was inconsistent with his testimony
at trial. For instance, while testifying at trial that he
received only $50 per day, working six days a week with only
short breaks for meals (T. 9), on cross-examination, Zou
testified to a substantially different arrangement:
"They paid me, yea. They told me about my pay [from the
beginning]. I was paid $1, 430, worked five full days, and I
take two half days off a week." (T. 63; Zou Deposition
at 8, line 20.) Oddly, Zou seemed to forget that he ever was
deposed in the case, and claimed that he did not recognize
defense counsel. When asked by defense counsel at trial if
he recalled meeting him at the December 7, 2017 deposition,
Zou stated: "I forgot. I don't remember. ... I
totally forgot. I don't even recognize you." (T.
52.) Plaintiffs' counsel, however, confirmed that his
client in fact had been deposed by defense counsel. (T. 53.)
The Court does not find Zou's lack of memory of being
deposed by defense counsel to be credible.
approximately November 2014, Plaintiff Chen passed by A New
Saigon on 2596 Broadway - which had not yet opened -
"[b]y happenstance" and inquired whether they might
be looking for workers. (T. 116) Chen left his phone number
and received a call from "Lau Gui," who invited him
to begin working there on the opening day of the new
restaurant. (T. 120) When he arrived to begin work,
Chen was greeted by Ah Pao as one of the managers and also
came to know "Boss Chen" (that is, Defendant Chen)
and Defendant Wu as other supervisors. (T. 117.) Plaintiff
Chen also identified ...